Medtronic, Whitserve, Oracle: Intellectual Property

Sept. 10 (Bloomberg) -- Medtronic Inc., the world’s largest
medical-device maker, got a mixed ruling in its appeal of a $7.4
million verdict won by Synthes Inc. over a patent for spinal
discs.

The U.S. Court of Appeals for the Federal Circuit in
Washington yesterday upheld findings that two Medtronic products
infringed a Synthes patent, while saying there was no violation
related to a third device. Part of the damage award against
Medtronic was vacated and the case was sent back to a lower
court for recalculation of what Synthes is owed.

A jury in 2008 awarded $5.7 million as compensation for
profit lost by a Synthes unit, and said Medtronic also should
pay an 18 percent royalty on $9.1 million in sales of its three
implants.

In yesterday’s ruling, the Federal Circuit said Synthes
wasn’t entitled to lost profits because the unit that makes a
product that competes directly with Maverick discs wasn’t a
party to the case. The appeals court also said O-Maverick
doesn’t infringe the patent.

The court in addition upheld the validity of the patent and
said an order Synthes had won to ban sales of products that
infringe the patent can’t be applied to overseas sales.

The case is Spine Solutions Inc. v. Medtronic Sofamor Danek
USA Inc., 2009-1538, U.S. Court of Appeals for the Federal
Circuit (Washington). The lower case is Spine Solutions Inc. v.
Medtronic Sofamor Danek Inc., 07cv2175, U.S. District Court,
Western District of Tennessee (Memphis).

Medicines Co. Angiomax Ruling Won’t Be Appealed by Government

Medicines Co.’s court victory to extend its patent term for
anticoagulant Angiomax won’t be appealed by the U.S. government,
the nation’s solicitor general said.

Medicines Co. won a court ruling in August that may force
the U.S. Patent and Trademark Office to add four more years of
patent protection on Angiomax, which accounted for all of the
company’s $404 million in revenue last year.

The solicitor general, the government’s top courtroom
lawyer, “has, at this time, elected against appeal in this
action,” according to a court filing yesterday.

Teva Pharmaceutical Industries Ltd. and Fresenius SE’s APP
Pharmaceuticals are seeking to sell copies of Angiomax and have
filed notices of appeal to the August court decision. The judge
in that case ruled that the patent office erred in rejecting a
request to extend the patent term to compensate for the time it
took the drugmaker to get regulatory approval for the medicine.

The case is The Medicines Co. v. Kappos, 10cv286, U.S.
District Court, Eastern District of Virginia (Alexandria).

Patent Lawyer’s Infringement Suit Includes Law Firm Defendants

A Connecticut patent owner who sued General Electric Co.,
EMC Corp. and Intel Corp. for patent infringement also named six
law firms as defendants.

Whitserve LLC’s patents 5,895,468 and 6,182,078, issued in
April 1999 and January 2001 respectively, cover a system for
delivering professional services over the Internet. According to
the complaint filed in federal court in Greenbelt, Maryland, the
patents were licensed nonexclusively to three entities for
patent and trademark maintenance.

In an earlier case against Computer Packages Inc. of
Rockville, Maryland, a jury awarded Whitserve $8.4 million for
infringement of the two patents.

The new case is against users of two products made by
Computer Packages. Whitserve said it “has not been made whole”
by the earlier suit, and the defendants in the new case “remain
liable for the damages associated with their infringing use” of
the products.

The named inventor on the patent, Wesley W. Whitmyer Jr.,
is a partner in Stamford, Connecticut-based St. Onge Steward
Johnston & Reens LLC. According to his biography, posted on the
firm’s website, he is a patent and trademark litigator.
Whitserve is a “technology company specializing in tools for
implementing knowledge worker functions in web businesses,”
according to the biography.

In the complaint against the three companies and the law
firms, Whitserve asked for a court order barring further
infringement of its patents, and for awards of money damages,
litigation costs and attorney fees. The complaint was filed June
10. None of the parties has yet answered it, according to the
case file.

Whitserve is represented by Gene S. Winter and Stephen Ball
from the St. Onge firm, and Barton D. Moorstein of Rockville’s
Blank & Moorstein LLP.

The case is Whitserve LLC v. Benesch Friedlander Coplan &
Aronoff LLP, 8:10-cv-01630-RWT, U.S. District Court, District of
Maryland (Greenbelt). The earlier case is WhitServe LLC v.
Computer Packages Inc., 3:06-cv-01935-AVC, U.S. District Court,
District of Connecticut (New Haven).

“For more than a decade, Oracle and NetApp have shared a
common vision focused on providing solutions that reduce IT cost
and complexity for thousands of customers worldwide,” NetApp
Chief Executive Officer Tom Georgens said in yesterday’s
statement. “We will continue to collaborate with Oracle to
deliver solutions that help our mutual customers gain greater
flexibility and efficiency in their IT infrastructures.”

Aiplex has been used to “secure” releases of more than 30
films, limiting pirates’ access to illegal copies, according to
DNA India.

For more copyright news, click here.

Trademark

Ceausescu Son Claims Theater Infringed Family-Name Trademark

The son of former Romanian President Nicolae Ceausescu
argued that “The Last Hours of Ceausescu” play infringed a
trademark for the family name during a trial that began in
Bucharest yesterday, Agence France-Presse reported.

A lawyer for the younger Ceausescu told AFP the damages
sought are less than 1 euro ($1.27) because what’s important is
the protection of the trademark.

A lawyer for the Romanian theater where the play was shown
said he would contest the trademark’s registration as an
“abuse” and “dangerous precedent,” according to AFP.

The play about Nicolai Ceausescu and his wife Elena -- who
were executed in 1989 at the end of Romania’s Communist regime -
- has also been performed in Berlin and Zurich, AFP reported.

Dick Barbour Claims Miniature Car Models Infringe Trademark

Dick Barbour, the auto racer who once had the late Paul
Newman as a driver on his team, sued a maker of miniature car
models for trademark infringement.

Exoto Inc. of Woodland Hills, California, is accused of
selling a die-cast replica race car model stamped with the
“Dick Barbour Racing” trademark and Barbour’s name. The exact-copy model cars, offered through the exoto.com website, sell for
$200 to $400, according to the complaint filed Sept. 7 in
federal court in Atlanta.

The trademark and the racer’s name are used without
authorization, Barbour claims in his complaint. Barbour
registered his trademark in 2003 and said that although the
registration lapsed this year, he has another application
pending and “has never stopped using the mark in commerce.”

Barbour claims that the use of his name on the model cars
“is likely to cause confusion” for consumers. The cars falsely
appear to have Barbour’s “sponsorship, approval, affiliation
and connection,” he claims.

He asked the court for awards of money damages, attorney
fees and litigation costs. Barbour also seeks an award of
Exoto’s profits attributable to the alleged infringement, and
asked that damages be tripled to punish Exoto for its actions.

Barbour and his Barbour Racing International LLC are
represented by Jason W. Graham and Mary E. Meyer of Graham &
Penman LLP of Atlanta.

The case is Barbour Racing International LLC v. Exoto Inc.,
1:10-cv-02852-CAP, U.S. District Court, Northern District of
Georgia (Atlanta).

‘The Situation’ Seeks to Register Catch Phrases as Trademarks

Mike “The Situation” Sorrentino, a character who appears
on the “Jersey Shore” reality television program, filed new
trademark applications, according to the database of the U.S.
Patent and Trademark Office. The marks relate to phrases he
commonly uses on the program, which runs on Viacom Inc.’s MTV
network.

On July 6, Sorrentino’s company, MPS Entertainment, filed
applications to register “Grenade Free America” and “Fresh to
Death.” He has an earlier application, filed in February, to
register “GTL.” According to the Washington Post, the acronym
stands for “gym, tan and laundry.”

Sorrentino is seeking the trademarks to be used on
clothing. He tried to register “The Situation” and was refused
in May because of a possible conflict with an existing mark,
according to patent office files. His February application to
register “Situation Nation” is proceeding with no opposition
to date.